Napatarra v Perpetual Trustee - [1999] NSWSC 750

CITATION: Napatarra v Perpetual Trustee [1999] NSWSC 750

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): 2370/99

HEARING DATE(S): 21/07/99

JUDGMENT DATE:
28 July 1999

PARTIES :

Napatarra P/L v Perpetual Trustee Co. Ltd & Anor

JUDGMENT OF: Bryson J at 1

COUNSEL : P. Walsh for Plaintiff
J. Stevenson & M. White for Defendants

SOLICITORS: Harris Wheeler for Plaintiff
Phillips Fox for Defendants

CATCHWORDS: CONTRACT - formation; LESSOR and LESSEE - agreement to lease - formation - Lessor's agent by letter set out "the essential terms" of proposed new lease on expiry of current lease and asked for acceptance and discussion - letter said "Your acceptance and/or our discussion of this offer is subject to Owner approval and the provision of a formal Letter of Offer" - Lessee signed Acceptance at foot of letter - on construction of letter it was HELD that no enforceable agreement had been formed - decision on terms of a particular document.

CASES CITED: Masters v Cameron (1954) 91 CLR 353 at 360
Dellwest Pty Ltd v Cafabe Pty Ltd (Bryson J) Unreported 26 November 1997
Arjay Investments Pty Ltd v Morrisson’s Outdoor Catering Pty Ltd (Young J) Unreported 1 May 1995 at p4
Hudson v Buck (1877) 7 Ch D 683
Marten v Whale [1917] 2 KB 480
Caney v Leith [1937] 2 All ER 532
Peet & Co. Ltd v Rocci [1985] W.A.R. 164

DECISION: See paragraph 23.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON J.

WEDNESDAY 28 JULY 1999

2370/99 NAPATARRA P/L v PERPETUAL TRUSTEE CO. LTD
JUDGMENT

1 HIS HONOUR: The plaintiff operates a fast food shop called Charlie’s Chopsticks at Shop E10 in the Food Court at the Charlestown Square Shopping Centre. The plaintiff first leased the shop from Burns Philip Trustee Co. Ltd. by lease from 4 April 1989 to 3 April 1994 and when that expired by a sublease granted by ANZ Leasing (NSW) Pty Ltd from 4 April 1994 to 3 April 1999. In some way ANZ Leasing’s leasehold ended before expiry of the sublease, the second defendant Perpetual became registered proprietor of the shopping centre and the parties came to stand in a direct relationship with each other. ANZ Leasing (NSW) Pty Ltd was formerly the first defendant but the proceedings against it have been discontinued. Perpetual holds as trustee for the General Property Trust. Actual management of the shopping centre has been in the hands of various companies in the Lend Lease Group throughout; at the time of the relevant events this year the manager traded as Lend Lease Retail, its full name being Lend Lease Property Management (Australia) Pty Ltd. The plaintiff’s direct dealings were with Lend Lease Retail. 2 The plaintiff’s principal claim is for a declaration that a new lease was entered into between the plaintiff and Perpetual to commence on 4 April 1999 for a period of five years. No formal or registrable lease has been granted and the claim must be understood as a claim for an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Napatarra v Perpetual Trustee

Details

AGLC: Napatarra v Perpetual Trustee [1999] NSWSC 750
Case: [1999] NSWSC 750
Decision Date: 28 July 1999

CaseChat Overview and Summary

The case of Napatarra v Perpetual Trustee involved a dispute regarding the formation of a lease agreement. The plaintiff, Napatarra, sought to enforce a lease with the defendant, Perpetual Trustee, on the basis of an acceptance of a letter outlining the terms of the proposed lease. The matter was heard in a lower court, and the decision was appealed to a higher court. The central issue was whether the exchange of correspondence constituted a legally binding contract between the parties.

The court had to determine whether Napatarra's signature on the acceptance at the foot of the letter, coupled with the conditions stated therein, constituted a binding agreement. The conditions included the requirement for owner approval and the provision of a formal Letter of Offer. The court considered the precise wording of the letter and the circumstances surrounding its creation and acceptance. It was held that the letter did not constitute an offer capable of being accepted by Napatarra's signature on the acceptance. Instead, the letter was merely an invitation to treat, and no enforceable agreement had been formed.

The court emphasised that the acceptance was subject to further conditions, such as owner approval and the provision of a formal Letter of Offer, which had not been met. Therefore, the court concluded that Napatarra's signature on the acceptance did not transform the letter into a binding contract. The court found that the letter was an invitation to negotiate further terms, rather than a definitive offer. As such, no enforceable agreement had been formed.

The appeal was dismissed, and the court confirmed that no binding contract had been established between the parties. The court's decision hinged on the interpretation of the letter and the conditions attached to the acceptance, which were not met. The final orders of the court were that Napatarra's claim for enforcement of the lease agreement was dismissed, and the defendant was not required to proceed with the lease on the terms proposed.

Orders